Wagner v. Chiari & Ilecki, LLP, 973 F.3d 154

Background

Plaintiff William J. Wagner (born 1950) and the actual judgment debtor, William J. Wagner, Jr., have nearly identical names but are unrelated and live at different addresses.
Chiari & Ilecki, LLP (C&I) represented a landlord who had a money judgment against Wagner Jr. and used New York post-judgment tools (restraining notice, information subpoena, subpoena duces tecum) to collect.
C&I’s skip-traces and databases identified 5419 Roberts Road as a possible address for the debtor; that address in fact belonged to plaintiff Wagner (no ‘Jr.’).
Between February and June 2015 C&I sent a debt collection letter, information subpoena, restraining notice, and subpoena duces tecum addressed to “William J. Wagner, Jr.” to 5419 Roberts Road; Wagner twice told C&I he was not the debtor and gave identifying information showing the mismatch.
A process server nevertheless served Wagner with the subpoena duces tecum and restraining notice; C&I later agreed to adjourn the debtor’s examination pending identity resolution.
District court granted summary judgment for C&I, finding C&I violated some FDCPA provisions but was protected by the bona fide error defense; the Second Circuit affirmed summary judgment on §1692e(5) and §1692f claims, vacated as to the bona fide error defense, and remanded for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether serving a restraining notice and subpoena duces tecum on a non-debtor violated §1692e(5) (threat to take action that cannot legally be taken)	Wagner: C&I lacked the requisite basis to serve those enforcement devices on him and thus made a threat it could not legally carry out.	C&I: The devices were lawful steps to enforce a valid judgment against the known debtor; sending them to the wrong person was an unintentional mistake, not an unlawful threat.	Court: Affirmed for C&I — sending otherwise lawful post-judgment process to the wrong person unintentionally did not violate §1692e(5).
Whether C&I’s conduct was an unfair or unconscionable means under §1692f	Wagner: Serving coercive post-judgment devices on a non-debtor and persisting after being told of misidentification was unfair and abusive.	C&I: Plaintiff was never forced to appear or comply; C&I adjourned proceedings and did not act in bad faith.	Court: Affirmed for C&I — record did not show bad-faith use of enforcement tools or that Wagner was compelled to attend or comply.
Whether C&I is entitled to the FDCPA bona fide error defense (§1692k(c)) (not intentional; bona fide error; procedures reasonably adapted)	Wagner: A jury could find the error was not bona fide and C&I lacked reasonably adapted procedures given contradictory data and Wagner’s twice-stated non-debtor status.	C&I: Error was unintentional and resulted from reasonable reliance on skip-trace/Real-Info/LexisNexis corroboration and case-file review.	Court: Vacated and remanded — a reasonable jury could find (1) the mistake was not bona fide and (2) C&I lacked reasonably adapted procedures; summary judgment for C&I on this defense was erroneous.

Key Cases Cited

Cruz v. TD Bank, N.A., 711 F.3d 261 (2d Cir.) (explains New York CPLR Article 52 governs post-judgment enforcement)
Kropelnicki v. Siegel, 290 F.3d 118 (2d Cir.) (FDCPA scope and need to guard against deceptive collection practices)
Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232 (2d Cir.) (least-sophisticated-consumer standard explained)
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573 (2010) (bona fide error defense shields factual but not legal mistakes)
Arias v. Gutman, Mintz, Baker & Sonnenfeldt LLP, 875 F.3d 128 (2d Cir.) (§1692f targets unfair or unconscionable litigation/collection conduct)
Edwards v. Niagara Credit Sols., Inc., 584 F.3d 1350 (11th Cir.) (sets out three-prong framework for bona fide error defense)
Currier v. First Resolution Inv. Corp., 762 F.3d 529 (6th Cir.) (example where state-law invalidity can support a §1692e(5) claim)